Re: Fine Art Reproductions

On 04/18/99, Amalyah Keshet <akeshet[_at_]imj.org.il> wrote:
>
> I've been mulling this one over. It seems that what Robert Baron is
> saying is that if museums and photo libraries like Bridgeman want to
> have copyright in their photographs of two-dimensional works of art,
> they would be wise to produce badly framed, badly lit, poorly focused
> instamatic shots of them. Well, that would certainly save us a lot of
> time, effort, and money.

That, ironically, is potentially one of the effects of the Bridgeman decision. The question is whether museums who take their artistic mission seriously would resort to such tactics. I doubt it.

> Seriously, in other discussions of the Bridgeman vs. Corel decision,
> the idea has come up that museums should find a way to photograph
> two-dimensional works of PD art so that a modicum of originality,
> i.e. difference from the original work of art, exists. For example,
> there's a trick we've used for ages when doing preliminary research
> shots of a print or drawing. We put a coin on the print or drawing,
> thereby "spoiling" the shot, and identifying the photo as 1) ours,
> and 2) a preliminary and not satisfactory, publishable photograph.
> I assume all would agree that this photo would be protected; we've
> added something original, and our intention was not to faithfully
> and exactly reproduce the work of art.
>
> Now, we could always photograph a painting leaving off, let's say,
> one or two inches all around. (We would define this as a cropped or
> "detail" shot.) Or we could photograph it at a slight angle to the
> lens, distorting its proportions. Or we could place in the shot one
> of the white cotton gloves we wear when handling art works. The
> possibilities are endless. What about a small museum logo obscuring
> the lower right-hand corner of the painting? Would these pass the
> Bridgeman vs. Corel test? Apparently so.

In all likelihood, such alterations would pass the Bridgeman test. But it may not achieve the result you want. Copyright only protects those elements of the work that are original. So, if someone copied the photo of the painting but removed the intruding item, it might not result in an infringement. [You could try to sue them for making an "intermediate" copy in which the offending item was still present; then the issue is whether making such a copy for the purpose of copying only the public domain aspects is a fair use. Courts are still split on that one.]

An interesting variation is so-called "digital watermarking," in which the digital bits making up the image are modified to hold an encoded message identifying the work as belonging to someone. In most instances, such digital watermarks do not create a visually perceptible change. Copyrightable? Regardless, many copyright holders are contemplating using such technology in connection with contractual terms to circumvent copyright law altogether by relying solely on contract. That's the reason why the new WIPO Copyright Treaty and the Digital Millenium Copyright Act contain provisions against the removal or alteration of "copyright management information."

In any event, it is worth noting that while Bridgeman may hold true in the U.S., and perhaps in the U.K. and other common-law countries, the opposite would probably hold true in most other countries of the world. This battle is not over by any means.

> Even better, we could leave the frame on, thereby photographing a
> three-dimensional object: a framed painting, shadows and all.
>
> Come to think of it, this is already the case. If you were to look
> at one of our color transparencies, you'd notice that it includes the
> edge of the painting's canvas, threads sticking out and all, the easel
> is visible above and below, as is the wall behind, and a Kodak color
> scale is taped to the easel, and often also a slip of paper on which
> is written the painting's inventory number. A three-dimensional
> composition, in other words. This stuff is cropped out by the graphic
> designer & printer in the process of creating the color separations and
> plates from which illustrations, postcards, or posters are printed,
> which is why you aren't aware of it. But in our photograph, they're
> there.
>
> Protected?

Yes; BUT the copyright only protects those elements of the photo that are original, so reproducing only the central image of such as transparency would not violate the copyright in the transparency.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Apr 19 1999 - 19:13:50 GMT